Crimes and Punishment

The Imperial Japanese Army invaded Hong Kong on December 8th, 1941 – just a few hours after an attack had been launched on the American naval base at Pearl Harbor. Seventeen days later ‑ on the morning of Christmas Day ‑ the British garrison surrendered. Hong Kong was occupied by Japan for most of the next four years – and during that time the Imperial Army committed atrocities on a mass scale. The first significant war crime occurred even before the British had surrendered – when Japanese troops entered a hospital facility and killed almost two hundred wounded soldiers. They also raped and murdered the nursing staff. At another hospital, Japanese troops gouged out eyes, cut off noses, ears and tongues and hacked off limbs from defenceless patients.

This terror was only a foretaste of what was to come. It is reckoned that at least ten thousand Chinese women were raped in the first few days of the occupation – and more than twice that number were killed. Throughout the following years, the Kempeitai – the Imperial Army’s security police ‑ treated the indigenous Chinese population as less than human. They routinely performed executions – including beheadings ‑ in the city’s public parks, and used innocent civilians for bayonet and shooting practice. They also forced large numbers of Hong Kong’s citizens to move to the Chinese mainland – where many thousands were to die of famine, disease and exposure. In 1941, when the Japanese arrived in Hong Kong, around 1.6 million people were living there. In 1945, when they left, the population barely numbered six hundred thousand.

British military courts began a series of war crimes trials in Hong Kong in January of 1946. Altogether, there would be forty-six trials ‑ with 123 Japanese soldiers and officials accused of being war criminals. From the beginning, it was clear that the British wanted to avoid any accusation that they were engaged in an arbitrary exercise of power. They wished to maintain a strict adherence to the concept of legality. However, Hong Kong was a crown colony – which meant that its legal position was somewhat anomalous. The military courts operated within the terms of the Geneva conventions, but they were also subject to British substantive criminal laws – as well as those of general courts martial.

The accused were accorded due process: they were given charge sheets, lawyers, abstracts of evidence and copies of exhibits. They were also allowed to present their own witnesses and documents, to address motion applications to the court, and to invoke review proceedings. They were not, however, permitted to argue that they were simply obeying orders: the courts ruled that Japanese soldiers were justified in obeying their superior officers only if they regarded their orders as lawful. This ruling generated a good deal of resentment among many Japanese, who believed it meant that the burden of guilt fell upon those who had followed orders – rather than those who had given them.

The accused were not allowed to plead that they had been following the principles of Bushido – the samurai moral code that considered being a prisoner of war as a shameful and degraded condition. In 1942, the Japanese government had assured the foreign minister of Switzerland – which was acting as the protecting power ‑ that the Imperial Army was “strictly observing” the Geneva conventions, and this assurance was interpreted by the British military courts as a legal obligation under international law. For some Japanese, this meant that the cultural values of Western nations were being applied to a country whose military traditions were very different.

When President Obama recently tried to draw a red line between the use of chemical and conventional weapons in Syria, some commentators questioned the difference between killing civilians by dropping bombs that carry the sarin compound, and those that are filled with high explosives: the victims, after all, end up dead or damaged either way. It might even be argued that the use of the nerve agent is a more humane method of killing ‑ since death usually occurs within one minute of direct ingestion. For some people any attempt to make fundamental distinctions between one act of war and another seems utterly spurious. If they are all considered to be equally heinous, then the very concept of “war crimes” appears redundant.

Despite all the difficulties – moral, political and legal ‑ there have been systematic attempts over several centuries to establish basic standards of international law by which modern warfare can be regulated. The first Geneva Treaty was drawn up in 1864, and, since then, there have been a further three treaties and two additional protocols. These have defined the basic rights of prisoners of war – both civil and military. They have also specified the protection that must be afforded to civilians and non-combatants in any war zone. Grave breaches of these conventions do not only include the deliberate killing, torture or inhumane treatment of those who are defenceless: depriving someone of their right to a fair trial if accused of a war crime is also deemed to be in breach of the Geneva protocols.

In the aftermath of World War Two, the Allies established three different categories of war criminals. “A class” suspects were deemed to be the leaders, organisers and instigators of the war. Those charged with specific crimes – such as mass murder ‑ were “B Class” criminals, and those charged with crimes against humanity – including torture ‑ were categorised as “C Class”. All of those tried in Hong Kong were considered to be “minor” war criminals, who were alleged to have murdered and tortured only on a relatively small scale. When the trials ended, fourteen of the accused were acquitted, eighty-six were sentenced to terms of imprisonment and twenty-one were executed.

The Hong Kong Trials overlapped with the two major war crime trials of the last century. The first was held in Nuremberg, between November 1945 and October 1946, when twenty-three political and military leaders of Germany’s Third Reich were tried by an international military tribunal. Of those accused, twelve were sentenced to death – one of them in absentia. Between April 1946 and November 1948, a similar trial took place in Tokyo. On that occasion, there were twenty-eight defendants – mainly consisting of former officers in the Imperial Japanese Army, and senior government officials. Eventually, seven of those accused were sentenced to death and executed.

Together, the Nuremberg and Tokyo Trials served to establish legal precedents that continue to influence and affect International Law. Other war crimes trials – such as those in Hong Kong – may not be as well known, but they have also had a significant impact. The Hong Kong trials are the subject of this collection of scholarly essays, edited by Suzannah Linton. The trials took place over a period of three years, but within a short space of time they seem to have faded from popular memory. It is only in recent years that the transcripts have been uncovered and the issues that they raise have come under renewed scrutiny. This book is part of that process. Its focus is primarily on the legal issues involved in the trials, and their implications, but it is, perhaps, inevitable that any such discussion will raise other important concerns.

One of these is the apparent ease with which important sections of Japanese society can ignore, forget or forgive the criminal actions of the Imperial Army during World War Two. This stands in marked contrast to the way in which Japan’s former ally, Germany, has dealt with its own troubled legacy. As Ian Buruma observed in The Wages of Guilt, Germans have examined the dreadful crimes of the Nazi regime with an openness and honesty that has sometimes bordered on obsession. The depravity of Nazi Germany has been thoroughly explored and documented – and for most sane Germans the evidence of the Nazis’ crimes is concrete, overwhelming and irrefutable. From the 1950s, German courts have conducted their own trials of Nazi war criminals: indeed, the trial of one former SS officer – now aged 92 – is currently in progress in the Westphalian town of Hagen.

There have been no such trials of war criminals by Japanese courts. In fact, recent Japanese governments have been inclined to deny that any war crimes ever occurred. Successive administrations have maintained that imperial Japan did not violate any international law or break any existing treaty. Those convicted of war crimes by Allied courts are not deemed to be criminals under Japanese law, and Japanese prime ministers are still ready to pay their annual respects at the Yasukuni shrine that commemorates convicted “A Class” war criminals. Shinzo Abe – the current prime minister – even claimed recently that the Imperial Army’s so-called “comfort women” had all volunteered to work as prostitutes. In general, the Japanese attitude to their former victims in China and Korea seems to be one of defiance rather than conciliation.

Most ordinary Japanese appear to feel little sense of regret or guilt about the conduct of their army during the world war. Yet it could be argued that there is a great deal that they should regret bitterly. There are, for instance, the orgies of killing which accompanied the Imperial Army’s sackings of Nanking and Manila; there are the slaves worked to death on the Thai-Burma railroad; the lethal medical experiments and vivisections performed on helpless prisoners; the prostitution that was forced upon thousands of Korean and Formosan women; the summary executions of captured American air crews; and the brutal POW camps in which Allied prisoners were tortured, murdered and denied adequate food and basic medical treatment.

Of course there are several factors that separate Imperial Japan from Nazi Germany. Many Japanese in the 1930s and ’40s may have considered themselves to be racially superior to other Asian nations. However, unlike the Nazis, they did not subscribe to a genocidal ideology that explicitly claimed the right to exterminate other ethnicities. Indeed, as Japan’s empire expanded through those years, it often defined itself against Western imperialism and presented itself as the liberator of the very nations that it had subjugated.

The Emperor Hirohito was directly implicated in the development and use of chemical weapons during the war, but he and the rest of the imperial family were granted immunity from prosecution for war crimes by Gen Douglas MacArthur, the Allies’ supreme commander in Japan. MacArthur believed that the American occupation would be made easier if he could use the emperor to legitimise the presence of US troops. He not only granted Hirohito immunity from prosecution; he also ensured that he could not be called as a witness in any war crimes trial. When one of those accused at Tokyo made reference to the emperor’s involvement, he was quickly prevailed upon – by the American prosecutor ‑ to retract his evidence.

There were other even more squalid deals struck at that time. On May 5th, 1945, the crew of a US B-29 bomber was captured after their plane had crash-landed in southern Japan. Eight members of the crew were taken to the anatomy department of Kyushu University, where they were all subjected to vivisection. One of the doctors present at these procedures later described how healthy limbs had been amputated from the American airmen, and their internal organs removed without any anaesthetic. On March 11th, 1948, thirty of the Japanese medical personnel involved in these ghastly operations were found guilty of the “wrongful removal of body parts”. All of them subsequently had their sentences commuted by Gen MacArthur – in return for information about their research into germ warfare.

MacArthur also granted immunity from prosecution to all the doctors in Unit 731: a medical research unit that had been based in the Japanese puppet state of Manchuria. Between 1937 and 1945, this unit deliberately infected Chinese civilian prisoners with cholera, anthrax, bubonic plague and venereal diseases. Flame-throwers were tested on live subjects. Sweets that had been laced with pathogens were given to Chinese children, and infected fleas were dropped on civilian populations. It is believed that more than half a million Chinese died as a result of Unit 731’s activities. In exchange for their research data, the doctors and staff were given a guarantee that none of the evidence of their crimes would be used in any future trial.

As a result of that secret deal, all of those in involved in Unit 731 walked free and many went on to establish successful and prominent careers in politics, academia and medicine. One of them used the experience he had gained from freezing Chinese prisoners to death to become the medical adviser on a Japanese expedition to the South Pole. Another – who had performed vivisections on Chinese children ‑ became head of the Green Cross: Japan’s main blood-processing agency.

Against this background of collusion, hypocrisy and moral compromise, the underlying purpose of some war crimes trials becomes, at the least, open to question. This may explain, in part, why the Irish government opposed the trials and executions that were held in Nuremberg. In October 1946, the former German minister in Dublin, Dr Eduard Hempel, wrote to the taoiseach, Eamon de Valera, asking him to intervene on behalf of the senior Nazis who had been sentenced to death. De Valera was quick to respond to the request, and civil servants in the Department of External Affairs were instructed to prepare a position paper that condemned the Nuremberg trials.

Within three days, a draft paper issued by the department had characterised these trials as illegal, and motivated solely by the Allies’ desire to punish the defeated Axis powers. The document questioned the Allies’ right to try military and political leaders for war crimes – since, it was claimed, there was no statute in law at the time those crimes were committed. A more detailed draft, issued a few days later, dismissed the whole concept of war crimes, and drew a comparison between the trials at Nuremberg and Britain’s historic use of the judicial system in Ireland to punish Irish nationalists.

Ironically, the British had initially been in favour of simply executing the Nazi leaders without any trial. They feared that a long legal process might affect public opinion ‑ both in Britain and Germany ‑ and that applying retroactive laws could be represented as a travesty of due process. Eventually, they were persuaded that the trials were necessary – not just to punish certain individuals but to condemn the whole ideology of the Nazi regime. This may explain the frosty response of the British minister in Dublin to de Valera’s request: the taoiseach was informed in no uncertain terms that the sentences passed at Nuremberg were the product of “prolonged deliberation and [a] scrupulously fair trial”.

Perhaps, at this point, I should declare a personal interest. My father fought in Burma, with an Irish regiment of the British army. He was captured, and tortured by the Japanese, but was set free by the army of the Chinese nationalist Kuomintang. After the war had ended, my father’s attitude towards his former enemies was somewhat ambivalent: he regarded the Imperial Army as brutal, barbaric and fanatical – but he also considered Japanese troops to be the finest infantry soldiers in the world. He did not harbour hatred of the Japanese people: in fact, he ended up working for a Japanese multinational corporation. He did not wish to see Japan engage in lachrymose expressions of guilt, but he did resent the failure, as he saw it, of Japanese governments to acknowledge and accept responsibility for the crimes committed by their army.

Viewed from other perspectives, the allocation of responsibility for war crimes may not seem quite so straightforward. Suzannah Linton’s book includes two lengthy interviews with a British officer who served – to begin with, as a judge, and, then, as a prosecutor ‑ in the Hong Kong trials. He describes how he was first approached by the senior officer of the war crimes court: “We met in this bar in the transit hotel and he took a fancy to me I suppose! He said ‘Would you like to come to Hong Kong?’ I said ‘Yes, sir!’ He said ‘I’m forming a court and I’ve got to get another member. I’ve got to get a Major.’ I said ‘Ooh yes, rather!’”

The officer in question, Maj Murray Ormsby, reveals himself elsewhere in these interviews to be an intelligent, thoughtful and perceptive individual. However, he was without any legal training, or experience ‑ even of court martial procedures – and by his own admission he knew almost nothing about Japanese culture. As Ian Buruma has observed, it seems unlikely that men like Maj Ormsby – who were appointed so casually – could have been able to sort out just who in the Japanese chain of command had been responsible for what.

As a result, Buruma believes that many people were “wrongly accused of the wrong things for the wrong reasons”. That may explain, in turn, why there was considerable public sympathy in Japan for the men branded by foreigners as war criminals. To many Japanese, crimes against humanity of the sort that were revealed in the Hong Kong trials could best be understood as the kind of excesses that are bound to be occur in any war. Instead of helping the Japanese to recognise and accept the reality of their past, such trials may have left them with an attitude of cynicism and resentment.

The tension between the desire for justice and the impulse for revenge seems to be a feature of every human society. But for all its imperfections, international law is now widely accepted, and the International Criminal Court is usually occupied investigating many different cases in many different countries. That may be a sobering thought, but the alternatives seem even more depressing. We could permit retribution to be dispensed on an arbitrary basis – or we could allow mass atrocities to go unpunished. Neither of these strikes one as an appealing option.

Linton’s collection of legal essays makes clear that international law is already a permanent fixture: almost two hundred states have now ratified the Geneva conventions, and the legal precedents established at the trials in Nuremberg, Tokyo, Hong Kong and elsewhere are widely regarded as a vital part of efforts to ensure international peace and stability.

The military courts working in Hong Kong between 1946 and 1948 sent out a message to the world that the rule of law should be based on reason and justice – and not on military force. That is why this collection of essays, examining the legal framework of those trials, remains of contemporary relevance. As Suzannah Linton observes, this is not just a question of compelling Japan to address the crimes that its army committed within living memory throughout Asia. It remains a critical issue because the punishment of war crimes is of continuing importance to the human race.
4/11/2013

David Blake Knox is a former director of production with RTÉ and executive editor with BBC Television. His independent production company, Blueprint Pictures, was founded in 2002, and has produced a range of TV programmes and films – including Imagining Ulysses, a feature documentary about James Joyce’s novel. His book Suddenly, While Abroad: Hitler’s Irish Slaves was published last year by New Island Books.